What does it mean to be a man? As the stereotype goes, a “real man” is athletic, a provider, virile, and confident. He is strong, definitely heteronormative, and preferably tends toward hypermasculinity. These stereotypes of masculinity are as damaging to men as they are to the women impacted by the behavior they inspire.
The trilogy of cases the United States Supreme Court will hear on Tuesday, R.G. and G.R. Harris Funeral Homes v. EEOC, Altitude Express v. Zarda, and Bostock v. Clayton County, are, at their core, about masculinity. The first case deals with transgender rights, and the other two concern sexual orientation. Together, they will force the court to take up the question of whether sex stereotypes are a reason to protect people who are assigned male at birth when they transition, or when they deviate from heterosexual norms. Workplace protections have already been expanded to combat discrimination against women based on stereotypes of femininity. They must also include protection for behavior that deviates from the binary definition of what it means to be a man.
Title VII of the Civil Rights Act, passed in 1964, prohibits discrimination by employers on the basis of race, color, religion, sex, or national origin. When interpreting an undefined word in a statute, as sex is in Title VII, courts often start with the plain meaning. Meaning and proper application can change over time, and terms that were once narrowly defined can broaden. This is especially true when circumstances were unforeseen or understanding was nonexistent. If the court interprets the statute using what Congress intended at the time it was drafted, many argue there is no room to include sexual orientation or gender nonconformity. But the definition and classifications of sex and gender are evolving. These cases ask the court to consider whether the definition of sex under Title VII should change with the times.
The court has made adjustments to Title VII before. In the 1989 case Price Waterhouse v. Hopkins, the Supreme Court extended Title VII protection to sex stereotyping, prohibiting employers from making employment decisions based on how they believe a person of a certain sex should behave. The court explained, “Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” Title VII protects a woman who fails to “walk … femininely, talk … femininely, dress … femininely, wear make-up, have her hair styled, [or] wear jewelry.” She is not discriminated against for being a woman, but instead for failing to be womanly enough.
This protection should apply equally to women and men, and by extension, equally to people living nonbinary lives who do not clearly fit on either end of the spectrum. It should also apply to those with non-heterosexual orientations. When deciding the trilogy, the Supreme Court should make this protection clear.
In R.G. & G.R. Harris Funeral Homes v. EEOC, the first case before the court on Tuesday, Aimee Stephens was fired after she sent a letter to her employer in the summer of 2013 explaining that she would no longer be living as a man and would instead, at work and in her personal life, live as a woman. After six years of favorable performance reviews and raises, she was terminated for failing to comply with the company dress code, which requires employees to dress according to their gender identity at birth due in part to the business owners’ religious beliefs. The funeral home argues that Aimee violated the mission statement of the company, which is “that the company’s highest priority is to honor God in all that they do.”
The other cases address the allegation that two men were fired for being gay. In Altitude Express v. Zarda, Don Zarda was fired from his job as a skydiving instructor at Altitude Express in Long Island, New York, after a customer learned Zarda was gay and complained to his employer. Tragically, Don Zarda died in a skydiving accident in 2014. His surviving partner, Bill Moore, and his sister, Melissa Zarda, have continued the lawsuit on behalf of his estate. In Bostock v. Clayton County, Gerald Bostock was employed as a court-appointed special advocates director in Clayton County, Georgia, where he was subjected to homophobic slurs and eventually fired for being gay. Clayton County contends that Bostock was let go for alleged improper handling of funds, though it did not file charges against him, and the first public allegations were included in response to Bostock’s litigation.
All three plaintiffs before the court were fired for not conforming to the stereotypical expectations of men. The gender on their birth certificates is the same, but their expressions and identities are on a spectrum that does not fit the clear binary stereotypes of male or female. The cases turn on how far the court is willing to expand the definition of sex under Title VII.
At the time Title VII was passed 55 years ago, the plain meaning of sex was simply male and female. This matters because many of the members of our current court view themselves as textualists who will start with the original meaning of the statute. Presumably, Congress’ goal at the time was to bring an end to the Mad Men era, where the norms of the time viewed women as subordinate and incompetent. It did not intend to protect gender expressions it could not even conceive of at that time. What these cases ask is whether we can evolve the plain meaning of a word to reflect current sentiments that are different from the sentiments at the time. If we have deemed sexual stereotyping as grounds for Title VII protection in Price Waterhouse, why not an expansion to stereotyping that is based purely on gender expression and sexual orientation? The purpose of Title VII, after all, is to prohibit discrimination. An expansive view of Title VII seems beneficial, especially when gender expression and orientation are restricted by stereotypes that promote toxic masculinity and female subordinance.
Though we’ve come a long way since 1964, the stereotypical man is still generally conceived as masculine and heterosexual. Social norms mandate that “boys don’t cry,” and when men express emotion they are admonished “not to be a girl.” When men behave aggressively, we hear the familiar refrain that “boys will be boys.” The stereotypical man is superior and strong. There is no room for vulnerability. Anything that can be perceived as feminine or soft must be hidden away or stamped out. These stereotypes define men under Title VII just as feminine walk, talk, dress, and makeup were a part of the meaning of women in Price Waterhouse. When read with Price Waterhouse, these harmful societal norms should allow for the protection of men who deviate. We must protect men who fail to be “man enough.”
Reading these stereotypes into the meaning of sex for men is not an overreach. Providing employees with protection from stereotypes on manliness is, instead, a true showing of the equality Title VII intended. The lower courts could clearly see that the actions of the employers were motivated by rigid perceptions of what it means to be male. In Harris Funeral Homes, the 6th U.S. Circuit Court of Appeals concluded that Title VII protects both the right of male employees to come to work with makeup or lipstick, and the right of female employees to refuse to wear dresses or makeup, “without any internal contradiction.” Just as Title VII applies when an employer expects someone born a woman to wear makeup or only dresses to be promoted, it applies when a funeral home expects someone born a man to only dress in traditional male clothing, or when a skydiving company expects a male instructor to be heterosexual.
Should we expect the court to keep up with the evolving definitions, grounded in science and popular culture, or should they adhere to the perception of cultural norms from 1964? Our not-so-distant past was mostly binary. For example, the original intent of the race and color protections in Title VII was to eliminate the problems of segregation and discrimination targeted at Black Americans in particular. The impetus for the act was the civil rights movement of the 1950s and 1960s, which challenged the denial of the right of Black people to participate equally in society. In spite of the original intentions, Title VII has been interpreted to protect people of all racial categories from discrimination. Similarly, in 1964, gender meant male or female. Sexuality was heterosexual or abhorrent. But, just as we have evolved to embrace new categories of race, the definitions of gender and sexuality have evolved past a binary meaning.
When it passed, the Civil Rights Act was a reflection of hope for cultural change, a move towards greater equality. While we have not fulfilled the ideal, Title VII is there to ensure that, at least in the workplace, we are treated in a way that does not discriminate on the basis of race or sex. To continue this mission, Title VII needs to be read more broadly to reflect our current cultural understandings of discrimination and stereotypes.
If the court fails to extend this protection to homosexual and transsexual Americans, most will be completely unprotected from sex-based discrimination in the workplace. Twenty-eight states have no protections for LGBTQ employees. Without Title VII, it will be legal to fire an employee for being gay or transsexual.
Transgender and homosexual people are seeking the same thing that women and people of color were seeking from the Civil Rights Act: the ability to enjoy the same freedoms as those in the majority, to make the definition of “normal” inclusive of all people and all expressions of culture. The Supreme Court should allow for Title VII to be protective and inclusive, a true reflection of what is best for the most vulnerable in our society.
Update, Oct. 8, 2019: The language of this article has been updated to clarify that trans women are women who have been assigned male at birth.